Citation Nr: 0029074
Decision Date: 11/03/00 Archive Date: 11/09/00
DOCKET NO. 99-06 707 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Whether new and material evidence has been submitted to
reopen a previously denied claim of entitlement to a
temporary total rating for hospitalization purposes beginning
April 27, 1988, and ending June 2, 1988.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P.B. Werdal, Counsel
REMAND
The veteran had active duty from December 1965 to December
1967.
In August 1988 it was decided that the veteran was not
entitled to a temporary total rating for hospitalization
beginning April 27, 1988, and ending June 2, 1988, as the
treatment administered during the first portion of the
hospitalization, from April 27, 1988, to May 17, 1988, was
for a nonservice-connected disability, and the
hospitalization from May 17, 1988, to June 2, 1988, was not
for more than 21 days.
The veteran filed a Notice of Disagreement expressing his
disagreement with that decision and requested a hearing. He
was furnished a Statement of the Case in February 1989. A
hearing was conducted at the RO in June 1989. The hearing
officer prepared a decision in February 1990 indicating the
1988 decision became final because the veteran did not submit
a timely substantive appeal, and that the decision remained
denied. In January 1991 the veteran submitted a document in
which he expressed his disagreement with the decision
regarding timeliness. He was not furnished a statement of
the case as to whether the appellant timely perfected an
appeal from the Augsut 4, 1988 rating action. Manlincon v.
West, 12 Vet.App. 238 (1999).
To ensure full compliance with due process requirements and
the statutory duty to assist the veteran, the case is
REMANDED to the regional office (RO) for the following
development:
1. The RO should request the VA facility
in Decatur, Georgia to furnish copies of
the complete records of hospitalization
from April 27 to May 17, 1988, to include
doctor's and nurse's notes, consultation
reports, and progress reports. The RO
should also request the VA facility in
Augusta, Georgia to furnish copies of the
complete records of hospitalization from
May 17, 1988 to June 2, 1988, to include
doctor's and nurse's notes, consultation
reports, and progress reports.
2. Thereafter it is requested that the
veteran's claims folder be forwarded to a
VA psychiatrist for an opinion as to
whether the veteran received treatment in
excess of 21 days for his PTSD during his
hospitalization from April 17 to June 2,
1988. A complete rational for any
opinion expressed should be included in
the examination report.
3. It is requested that the RO furnish
the appellant a statement of the case as
to the issue of whether the appellant
timely perfected an appeal from the
Augsut 4, 1988 rating action. He should
be informed of the criteria required to
perfect his appeal. Manlincon v. West,
12 Vet.App. 238 (1999).. The RO is
informed that this issue is not before
the Board until timely perfected.
Thereafter, the case should be reviewed by the RO. If the
benefit sought is not granted the appellant should be
furnished a supplemental statement of the case and an
opportunity to respond. The case should then be returned to
the Board, if in order. The Board intimates no opinion as to
the ultimate outcome of this case. The appellant need take
no action unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ROBERT B. REGAN
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).